व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

161 VYAVAHĀRAMAYŪKHA [ S. VI. 6-10
[ M. p. 117 ll. 2-30
' Pratinyāsaḥ '¹ is when the owner deposits with a person who redeposits it
with another ² Kātyāyana ordains the restoration in certain cases of deposit
made to an artisan even when it was destroyed by an act of fate or the king
' If an artisan agrees to work up a deposit in a definite number of days
and keeps it with him beyond those days he should be made to pay ( the
price of ) it even if it were gone ( lost ) through the act of fate '
Nārada ( pp 150--151 vv 8-9 ) says
Wearing apparel loses the eighth part of its value on being washed once
( for the first time ) the fourth part ( on being washed ) twice ( for the
second time ) the third part ( on being washed ) for the third time and
one-half on being washed for the fourth time. After one half of the
original value is lost one fourth of the value will be reduced in order
'( for each further washing )'³
Yājñavalkya ( II 288 ) says
A washerman on wearing the garments of another ( handed to him for
washing ) shall be fined three panas and ten panas in cases of sale
hiring out pledge loan for use ( without hire ).
Avakrayaḥ means delivery to another for hire ādhānaṃ
means making a pledge of it The same author ( Yājñavalkya II 178 )
states the rules about the reduction ( of weight ) in metals other than gold
when they are heated in fire
Gold is not reduced ( in weight ) by fire in silver ( the reduction ) is
two palas in a hundred in tin and lead it is eight ( palas in a hundred)
and in copper it is five and in iron ten

• In the case of reduction ( in weight ) of silver and the rest exceed-
  ing these ( limits ) the goldsmith and others are to be fined. The same
  author ( Yāj. II 179 ) declares a special rule as to increase ( in weight ) in
  certain cases when yarn has been given for ( being woven into ) cloth
  In the case of woollen and cotton yarns the increase ( in the weight )
  is ten palas in a hundred in ( cloth of ) middling quality it is five
  palas ( in one hundred palas ), in ( cloth of ) fine quality it is declared
  to be three palas ( in one hundred )
  The same author ( Yāj. II 180 ) declares that there is a reduction ( of
  weight in cloth ) in certain cases
  A reduction of a thirtieth part is allowed in the case of cloth on which
  figures are drawn and of cloth embroidered with hair there is neither reduc-
  tion nor increase ( of weight ) in the case of silken cloth or bark cloth.
  1 According to the Mit. on Yāj. II. 67 pratinyāsa is a mutual deposit, both sides
  delivering articles for safe custody as occasion arises. The Mayūkha takes it in the sense
  of a deposit of a deposited article
  2 Compare section 101 of the Indian Contract Act
  3 If clothes are washed only once and then lost by the washerman, he has to pay
  their price minus one-eighth.
  P 131 ( text )

$\left.{l}S. VI. 10-VII 1
M. p.117 l.30-p 118 l.12 \right]$ DEPOSITS 225
'Kārmike' means 'in working figures of the svastika and the like
with fine silken thread on cloth already woven'. If something was deli-
vered to an artisan (for being worked up) and a time was fixed (at the
end of which the finished article was to be delivered) and (the owner of
the raw material) made a demand before the time fixed had elapsed, the
artisan would not be liable even if the article were lost when not returned
on demand. The same author declares this
If an artisan (after the owner of raw materials made them over to him)
for a particular purpose or after fixing a time (for delivery of the finish-
ed article) were requested (to return the materials) when the article
was only half finished, he (the artisan) is not to be made to deliver the
article or its price because (the finished article) was not obtained
(through act of God or king)¹
The reverse of this is laid down by the same author
When the time (fixed) has elapsed and the purpose is served, if the
artisan does not deliver it though requested, he would have to pay the
price, if the article be destroyed or stolen

• The same author says
  He who having taken a yācitaka (loan for use) does not deliver
  it even on demand should be restrained and forcibly made to return it
  and fined if he does not return.²
  Here ends the section on deposits.
  Now begins 'sale without ownership'
  Vyāsa says:
  What is borrowed for use or what is entrusted to a man for being
  delivered to a third person or a deposit or the wealth of another that is
  stolen–when these are sold behind the back of the (true) owner, it is known
  as sale without ownership.³
  Kātyāyana says

1. This and the following two verses ascribed to Yāj. here are not found in the printed
   text of Yāj. and are ascribed to Kātyāyana by other writers. The Sm C. and Vīr hold
   that this verse and the next apply to yācitaka and explain them differently, vide notes
   to V. M. pp. 355--356. Compare section 159 and 160 of the Indian Contract Act.
2. The lender had not to resort to the several means of persuasion &c. as in the case
   of a debt, he could at once resort to bala and if the borrower did not deliver even then the
   king would fine him.
3. 'Sold'—this includes a gift and a mortgage.

• P. 195 (text)
  V. M.29

226 VYAVAHĀRAMAYŪKHA [ S. VII. 1-4.
[ M p. 118 ll. 12-21
A sale gift or pledge made without ownership should be rescinded (or
cancelled)¹
Asvāmī (in Kātyāyana) is a separate word and is an adverb Nārada
(pp 144-45 vv 2-3) says :
A purchase effected in public is blameless, (but) the purchaser incurs
the charge of theft by purchasing clandestinely If a man buys from a
slave who is not authorised by his master (to sell) or from a rogue (a
bad character) or in secret or at a low price or at an improper time he
is as guilty as a thief²
Tad-doṣaḥ means the guilt of a thief Yājñavalkya (II 171)
says
"Proof of the ownership of a thing lost (or stolen) must be given
(by the owner) by means of title or possession but otherwise on
failure of such proof by him he should pay to the king a fine equal to

$\left.{l} S. VII. 4-6
M. p. 118 l.82 -p.119 l. 25 \right]$ SALE WITHOUT OWNERSHIP 227
Where the seller pointed out (or produced by the purchaser) has
been defeated in the lawsuit he should pay to the buyer and the king the
price and a fine (respectively) and the thing (in dispute) to the owner.$^1$
Kātyāyana says
If the purchaser cannot point out (or produce) the seller, he should
clear his purchase (as overt) Time for producing the seller should be
given (to the purchaser) according to the extent of the distance. When
he (the buyer) has cleared his purchase (as overt and so legal) he
should not be blamed at all by the king. The claimant$^2$ should first
establish by means of his kinsmen (as witnesses) that the thing (in
dispute) was his Afterwards the buyer should establish in order to
clear himself his purchase (as overt and so bona fide) by (the testimony
of) his kinsmen
*Even if the purchaser proves the purchase (as overt), still the
property does revert to the claimant to whom it belonged (and who had
lost it). So says Manu (VIII 202)
If the seller cannot be produced, the purchaser is let off by the king
without fine and the person claiming the thing as his and lost by him
gets it back when it is established to have been purchased openly
'Anāhārya' (in Manu) means 'not having pointed out (or produced)'
The meaning is 'the thing that is cleared by its being proved that the
purchase was made openly' Kātyāyana says
(A purchaser) who does not produce (or keep present before court)
the seller or who does not establish the purchase (as overt) should be
made to pay to the owner the price (of the article) as claimed in the
plaint and a fine (to the king)
Bṛhaspati (p 335 vv 7-8) says
When a purchase has been made before (i e to the knowledge of) a row
of traders and to the knowledge of the king's officers, but the purchase is
made from one whose habitation is not known or the vendor is dead, the
real owner (of the thing thus sold away without title) will recover his
chattel after paying half the price (to the purchaser), in such a case both
(the real owner and the purchaser) lose a half on account of the popular
usage (on such a point).$^3$
Marīci says
Where the vendor cannot be found because his dwelling place is un-
known the loss should be assigned equally to both the purchaser and the
claimant of the thing lost (by him)

1. Compare Yāj II 170
   2 The 'claimant'— the person called 'nāṣṭika' above
   3 Each is to be blamed to some extent, the purchaser for buying from a man
   whose habitation was unknown to him, the real owner for being careless enough to lose his
   property 'Vyavahārataḥ' may also mean 'in the judicial proceeding' or 'according
   to the rules of law.'

• P. 127 (text

228 VYAVAHĀRAMAYŪKHA [ S. VII, C. 10
[ M. p. 119 l. 20-p. 120 l. 14
'Niveśaḥ in (Marīci) means ' the residence of the vendor Nārada
says
One should enjoy what is permitted (by the real owner) whether
women, cattle or land but he who enjoys without being offered (or per-
mitted) should be made to pay the profit of such enjoyment

• Uddiṣṭam means permitted bhuktabhogam means hire (or
  profit) in accordance with the enjoyment Yājñavalkya (II 178) says
  The owner of a thing that was lost or stolen and was brought to the
  king by the toll-gate keepers or by guards shall recover it (from the king)
  within one year after that the king shall take it ¹
  As regards what Manu (VIII. 30) says
  The king should keep in his custody for three years property the owner
  of which has disappeared (or cannot be found) the owner can take it
  (at any time) within three years beyond three years the king may
  retain it
  that refers to property of which a brāhmaṇa learned in the Vedas is the
  owner The same author (Manu VIII 33) says
  The king remembering the righteous conduct of the good should take a
  sixth tenth or even a twelfth part of property which had been lost and
  was then found (by the king or his officers) ²
  Here in the first year (the king) should give up the whole of the pro-
  perty in the second year he should take a twelfth share and then give up the
  property, in the third year a tenth part in the fourth year and the rest a
  sixth. The words beyond (three years) the king should retain it are
  meant only to permit the disposal of the thing after three years if the owner
  does not come (within three years) If the owner comes, it must be re-
  stored to him even if disposed of This is what the Mitākṣarā says. This,
  however holds good only if the owner be unknown but when there is
  certain knowledge so and so went away forgetfully leaving this property
  then he recovers it even after three years and the king also has no authority
  to dispose of it. But he may take a certain portion for himself (for safely
  keeping the articles) Yājñavalkya (II 174) mentions the remuneration
  (or wages) for guarding for a day animals belonging to another that were
  found straying
  (The owner of straying animals) should pay four paṇas if the animal
  be of the species with single hoofs, five for human beings, two paṇas for
  a buffalo camel and cow and one fourth of a paṇa for goats and sheep.
  But what was consumed by them must be paid for besides (the above)
  On a treasure being found Yājñavalkya (II 34-35) says

1. Compare Gautama X. 36-38.
   2 Various explanations are given as to when a sixth, tenth or twelfth share was to
   be taken. Vide notes to V M. p 301.

• P 109 (text). ‡ P 120 (text)

S. VII. 10-VIII. 1
M. p. 120 l. 25-p. 121 l. 9 ] FINDING OF TREASURE 229
The king having himself found a treasure¹ should give half of it to
brāhmaṇas; but a brāhmaṇa ( finding treasure ), if learned should take
( appropriate to himself ) the whole, since he ( learned brāhmaṇa ) is
master of everything When a treasure is found by anyone else, the king
should take a sixth part of it;² one who does not inform the king of the
find should be made to restore ( the treasure to the king ) and also pay
a fine.³
But when anyone proves by some distinctive mark or weight or other-
wise that the treasure ( found ) is his, then the king should deliver it to him
after giving a twelfth part to the finder and after taking a sixth for himself,
as Manu ( VIII 35 ) says :
When a man avers truthfully and says ' this is mine ', the king should
take a sixth share from him and a twelfth also.
*The twelfth share is for the finder On the subject of property stolen by
thieves the same author ( Manu VIII. 40 ) says
Property stolen by thieves must be restored by the king to the owner
to whatever varna he may belong, if the king appropriates it to his use
he incurs the sin of the thief ⁴
Where the king is unable to recover property ( from thieves ) Krsna-
Dvaipāyana ( Vyāsa ) says .
If unable to recover property stolen by thieves, the king when so
powerless shall make it good from his own treasury ⁵
Here ends the discourse on sale without ownership.
Now begins the section on joint undertakings ( or concerns ).
Nārada ( p 124 v. 1 ) says
Where traders and others carry on business ( or transactions ) jointly,
that is declared to be a joint concern, which is a title of law

1. Nidhi means a treasure buried in the earth. Compare Manu VIII. 37 for a
   proposition similar to ' he is master of everything '
2. The Mit interprets this part differently as ' the king should give a sixth part to
   the finder ' ( other than a brāhmaṇa or king ) and keep the rest for himself. The Mit.
   quotes Vasistha III 13 in support Vide Gautama X 43-45 The interpretation in the
   text is more natural and follows Aparārka.
   3 Compare the Indian Treasure Trove Act ( VI of 1878 ) sections 4, 10-12, 20 with
   these rules
3. Compare Yāj. II 36, Gautama X. 46, Visnu III. 66,
4. Compare Gautama X. 47, Viṣṇu III. 67.

• P. 200 ( text ),

means experts ācāryaḥ means those`

• L28: who introduce new methods Bṛhaspati ( p. 341 v 29 ) says
• L29: The headman among a number of workmen jointly building a mansion (looks like jountly in print: jountly)
• L30: or temple or making utensils required for religious worship is entitled to two
• L31: shares ²
• L32: The same author ( Bṛhaspati p 341 v 30 ) says
• L33: The same rules have been declared by the good for dancers but one
• L34: who beats the tune ( while others sing or dance ) gets half a share while
• L35: the singers get equal shares ( with the dancers ) ³
• L36: 1 Compare section 251 of the Indian Contract Act.
• L37: 2 Two shares — The headman gets as wages double of what other workmen get.
• L38: The reading cārmikopaskarāṇi ( articles of leather ) is bad, particularly when it has to be
• L39: placed in juxtaposition to temples.
• L40: 3. The chief dancer gets two shares like the chief among builders.
• L41: `P 202 (

S VIII 4-IX. 2 ] JOINT UNDERTAKINGS OR PARTNERSHIPS 231
M. p. 122 ll 1-22 ]
Kātyāyana says ¹
If any one from among them while they are scattered about (for
pillage) is caught, then* they should contribute (or bear) according to
their shares towards the payment of the ransom for securing his release
This is the settled rule as regards all that engage in (a joint) under-
taking without (previously) defining their shares, such as traders,
husbandmen, thieves or artisans.
Here ends the section on joint undertakings.
Now begins (the section on) resumption of gifts
Nārada (p 128 v 1) says :
Where a man wishes to resume what he has improperly given, that is
a title of law called Dattāpradānika
‘Asamyak’ (in Nārada) is an adverb and means ‘in a way that is
forbidden’ The same author (Nārada p 128 vv 2, 4, 5) says
What may be given and what may not be given, valid gifts and invalid
gifts — in judicial matters, the law of gifts is said to be thus fourfold An
anvāhita, a yācitaka (loan for use), a pledge, joint property, a deposit,
son and wife, the whole property of one who has offspring and what has
been already promised to another man-these have been declared by the
(ancient) teachers to be inalienable (to be not proper subjects of gift)²
Here as a man has no property over the series of objects ending with
son and wife, the express prohibition of a gift with reference to them is mere
anuvāda (a laudatory or condemnatory re-iteration) as in the case of the
Vedic text ‘neither in middle regions nor in the heavens³’ This explanation
1 Nīlakantha introduces these verses rather abruptly In other works there are two
verses preceding the first verse quoted, which say that if certain adventurous spirits plunder
the territory of an enemy king at the bidding of their king, they should give one-tenth of
the booty to the king and divide the rest, that the head of the plundering party should get
four shares, the intrepid ones three shares, the strong ones two and the rest one share each
2 The words ‘anvāhitā, yācitaka, ādhi and nikṣepa’ have already been explained,
‘son and wife’—these must be regarded as one item Nārada (p 128 v 3) says that what may
not be given is eight-fold A person is not an absolute owner of what is anvāhita with him
or of yācitaka, of a pledge, deposit or of property jointly owned with others or of son
and wife
3 One cannot make a gift of what one does not own Nīlakantha established above (text
p 92 and tr p 83) that there is no ownership in wife and son Therefore the six objects ending
with son and wife in Nārada could not be gifted away. But Nārada does say that they are
‘adeya’ (using the potential passive participial) This is not a prohibition (niṣedha)
properly so called, for a prohibition is made about something that might, in the absence
of the prohibition, follow as a matter of course There being no ownership in the
six things and it being well-known that a gift can be made only of that which is owned by
one, it is not necessary to prohibit Therefore this is not a proper niṣedha These words

• P. 202 (text)

282 VYAVAHĀRAMAYŪKHA [ S. IX. 2-3
[ M p. 122 ll 22-33
also explains the paryudāsa (proviso) contained in the text of Yājñavalkya
(II. 175) 'a man may give anything that does not cause detriment to one's
family except¹ wife and son'. The absence* of ownership in son and wife has
been already propounded in the discussion on ownership (p. 83 above). In
making a gift of these (that are mentioned in Nārada) not only will the
gift be invalid in law but the man will be liable to undergo an expiatory
penance as Dakṣa says with reference to these
That foolish man who makes a gift of these incurs the penalty of
expiatory penance.
Manu says
He who receives what may not be given and he who gives what may
not be given both of them should be punished like a thief and should be
only repeat what is already well-known, that is, they are merely an anuvāda (which
is a variety of arthavāda). Nīlakaṇṭha cites a Vedic example of a negative clause being
only an anuvāda and not a niṣedha properly so called. In Tai. S. V. 2. 7 we have
a sentence "The brahmavādins say 'fire should not be kindled on the bare ground, nor
in the middle regions nor in the heavens'". The rule about agnicayana is that fire is
to be kindled on gold and not on bare ground. It is not possible to kindle fire in the
middle regions nor in the heavens; therefore this prohibitory passage (nāntarīkṣe na divi)
does not forbid what possibly might be done. These words contain only an arthavāda
(of the anuvāda variety) and serve to belaud the kindling of fire on gold and censure
kindling on bare ground. This text is dealt with in Jaimini I. 2. 5 and X. 8. 7. Vide notes
to V. M. pp. 367-368 for further explanation. An arthavāda has three varieties: virodhe
guṇavādaḥ syād-ānuvādovadhārite | bhūtārthavādas-tad-dhānād-arthavādas-tridhā
mataḥ || When it is said 'Ādityo yūpaḥ' (the sun is the sacrificial post) it is an example of
guṇavāda as this is opposed to our perception, but the sentence has only a secondary sense
(viz. that both Āditya and yūpa are brilliant). When it is said 'agnir himasya bheṣajam'
(fire is an antidote to cold) it expresses what is well-known from the experience of our
senses. So this is anuvāda. When it is said 'Indra killed Vṛtra' it is bhūtārthavāda
since it is not opposed to any pramāṇa, nor is it known from any pramāṇa; it only
narrates a story.
1 When the negative particle na is employed in a passage the question often
arises as to its exact import. In some cases it has the sense of pratiṣedha (prohibition)
as in 'he does not take the ṣoḍaśi cup in Atirātra sacrifice'. Sometimes na has the
sense of an arthavāda, as in 'neither in the middle regions nor in the sky' discussed above.
In some cases na has the sense of paryudāsa (an exception or proviso). A Vedic
example is 'the snātaka should not see the rising sun', which passage is preceded by the
words 'tasya vratam' (his observances). An observance is something positive, there-
fore 'he should not see' &c. does not prohibit the seeing of the rising sun but only enjoins
that he should make a resolve not to see the rising sun. Yājñavalkya's rule is 'what a
man owns may be given'. The words 'except son and wife' constitute an exception. Just
as in Nārada's verses 'anvāhitam' &c. several things are declared to be adeya though
over the first six of them there is no ownership (and so the negative particle is construed
as an anuvāda) so Yaj. excludes son and wife from deya things though they are not of
the same nature as other things (over which there is ownership). This is the idea
conveyed by the words 'this explanation also explains &c.)' Vide notes to V. M. pp. 369-
370 for detailed explanation. Dakṣa enumerates nine things as adeya.
P. 203 (text)

S. IX. 4-6 ] RESUMPTION OF GIFTS 233
M. p. 122 l. 32-p 123 l. 16 ]
made to pay the highest amercement.¹
What may be given is thus declared by Bṛhaspati ( p. 312 v. 3 ) ·
What remains after (providing) for the food and clothing of the family
may be given.
Kātyāyana declares what must be given ( without fail ) ·
He who, having voluntarily promised a gift to a brāhmaṇa, does not
deliver it should be compelled to give it as if it were a debt and should
be fined the first amercement.
Gautama ( V. 21 ) says ' one should not give, even after promising to
give, to a man who does what is forbidden ' ( by the s'āstras ) Vyāsa forbids
the gift or sale of means of livelihood ²
Those who are born and those who are yet to be born and those who
are in the womb wish for means of livelihood; so no gift nor sale ( of vṛtti
' can be effected ).
Nārada ( pp. 128-129 vv. 3 and 8 ) sets out the various kinds of valid
and void gifts :
*Of valid gifts there are seven varieties and invalid gifts are of sixteen
varieties. The price paid for goods, wages, what is paid for pleasure
( from dancers or bards ), a gift through affection, a gift from gratitude,
a gift to a bride's kinsmen and gifts for charitable purposes-these are known
as valid gifts by those who have knowledge of gifts.
' Anugraha ' means ' dharma ' ( religious and charitable purposes )
Nārada ( pp. 129-130 vv. 9-11 ) says :
Invalid gifts are ( sixteen ) as follows · What has been given by men
under the influence ( or pressure ) of fear, anger, pangs of sorrow, or as a
bribe or in jest, or under misapprehension ( as to person or thing ), or
through fraud, or given by a child or by a fool or by one who is not his
own master, by one who is distressed, by one intoxicated, by one who is,
insane; or what is given from the desire of a reward thinking ' this man
will do me some good turn '; what is given through ignorance to an
undeserving person because it was proclaimed that he was a worthy
person, what is given for a purpose which is really sinful ( though
thought to be meritorious )—all these are known to be invalid gifts ³

1. Manu VIII. 138 lays down 1000 paṇas as the highest amercement, 500 as middle
   and 250 as first, and Yāj. I. 366 prescribes 1080 as the highest fine, half of it as mid-
   dling and quarter of it as first or lowest
2. ' Adharmasaṃyukta ' in Gautama means one who is guilty of visiting a prosti-
   tute and such other censurable conduct. ' Vṛtti ' — Mandlik takes it in the modern sense
   of ' a religious office such as that of a village priest ' by which a man makes his livelihood,
   but it is not necessary to do so
3. In Javerbai v Kablibai 15 Bom 326 at p. 336 it was said that Nīlakaṇṭha does
   not place a conditional gift amongst those which are essentially void and that in the works
   of other Hindu writers the word ' upādhi ' usually implies fraud and not merely condition.
   With the last two in Nārada compare Manu VIII. 212.

• P. 204 ( text ).
  V. M. 30

234 VYAVAHĀRAMAYŪKHA [ S. IX. 7 10
[ M. p.128 l. 27 p.124 l.28
Ruk means ' pain The construction is by those who are under
the influence of pain caused by fear and the rest ; i. e. the meaning is
given by one who was oppressed by the fear of being beaten &c ; in the
same way what was given ( to others ) through anger against brothers with
the idea that loss may be caused , vyatyāsaḥ is when a man intending
to give silver gives gold through mistake chalayogataḥ occurs when
( for example ) knowing that a king wanted to give a cow to Devadatta it
was given to another who dressed himself like Devadatta even though the
recipient was a worthy man Kṛtaḥ means one whose mind is restless
through disease , mattaḥ means intoxicated by some intoxicating drug ,
unmattaḥ means affected by wind ( delirium ) apavarjitam means
given what was given with the thought he would do me a good turn
to one who does not do it what was given with the idea that one ( the
donee ) will employ it for religious purposes but who employs it for sinful
purposes These ( gifts ) return ( to the donor ). Kātyāyana says
' What is given through lust or wrath or by those who are dependent
by those distressed by those frightened by lunatics or by those who are
infatuated or what was given for avoiding ( the consequences of ) lapses
( from the right path )—these may be taken back ²
Kāmāt means for seducing the wife of another , klībaḥ
means one frightened , the meaning of vyatyāsa dattam is bribe.
What is promised as a bribe to a man for accomplishing a certain object
need never be given even though the object be accomplished If the bribe
were given before ( the object was accomplished ) it should be returned
by force ( to the giver ) and a fine eleven times as much ( as the
bribe ) should be levied. This is what the followers of Garga and
Manu say ²
The same author ( Kātyāyana ) describes the nature of a bribe
That is said to be utkoca ( a bribe ) which is obtained by those, viz. by
giving information about a theft about a felon, about one who breaks the
rules of decent conduct about an adulterer by pointing out those who
are of bad character by spreading false reports about a person ³
Manu ( VIII 165 ) says
A fraudulent mortgage or sale, a fraudulent gift or acceptance and
everything else wherever ( the king or judge ) finds deceit-all these he
should declare to be void.

1. Compare Gautama V 23 and Bṛ p. 313 vv 9-10.
2. These two verses are quoted in Shri Sitaram v Shri Harihar 35 Bom 100 at
   p 180 where it was held that if an adoption was induced by a bribe given to a widow the
   bribe was an illegal payment and cannot support a sale or gift.
3. Giving information about a theft = either suppressing information about a
   person who is really a thief or threatening a person that he would be reported as a thief

• P 205 ( text )

B. IX-10-X. 1 ] RESUMPTION OF GIFTS 235
M. p 131 l. 23-p 134 l. 1.* ]

• • 'Yoga' means 'fraud'; 'yutā' means 'in whatever other tran-
    saction'. The meaning is that 'all that returns (to the donor) when the
    fraud vanishes (i. e. detected)'. Kātyāyana says :¹
    If a gift was promised by a man for a religious purpose, whether when
    in good health or when afflicted with disease, the son should be made to
    pay it, if the father (the promisor) die without actually handing it over;
    there is no doubt on that point.
    Further elucidation on this point will be found in my revered father's
    Dvaitanirṇaya.
    Here ends (the section on) resumption of gifts.
    Now begins (the section on) the breach of a contract of service.
    Nārada (p. 131 v. 1) says:
    When a man having agreed to serve does not carry out the agreement,
    it is termed a breach of the contract of service, a title of law.
    Bṛhaspati (p. 345 v. 10) says, that servants are of three kinds:
    The armed fighter is declared to be highest, the cultivator the middling
    one, the porter is declared to be the lowest and so is (a servant)
    employed in household work.²
    Nārada (p. 135 v. 24) says:
    One who is appointed over all (servants) and (to supervise) over the
    household should also be regarded as a labourer and he is known to be

1. It was said above that a gift by one who is 'ārta' is void, an exception to that is
   stated in this verse. The only case where an incomplete gift not actually made but remain-
   ing only in promise was enforced by the courts in ancient India are a gift promised to a
   brāhmaṇa (vide Kātyāyana quoted above on p. 233) and a gift for a religious purpose. This
   verse contains the germ of the idea of a will since here the mere declaration of the inten-
   tion of a man to give for religious purposes is made enforceable after his death. In modern
   times a mere gift for dharma without specifying any particular object is declared to be
   void for uncertainty. Vide 6 Bom. 24, 11 Bom. 482, 17 Bom. 351, 18 Bom 136, 23 Bom.
   725 (P. C.) at p. 735 (= 26 I. A. 71). But this is opposed, as pointed out in 30 Mad. 340
   to the spirit of ancient Hindu Law. Vide Manu IV. 227 for dharma meaning 'iṣṭa'
   (religious purposes) and 'pūrta' (charitable purposes). This text of Kātyāyana is the
   basis of the Hindu Law of religious Trusts. Vide Ghelabhai v. Uderam 36 Bom. 29 at
   p. 35 (where the verse is quoted) and Bhupati Nath v. Ram Lal 37 Cal. 128 (F. B.) at
   p. 187 (where also Kāt. is quoted). In many of the earlier reported cases it was laid
   down as a general proposition that under Hindu Law a gift was invalid without possess-
   ion. Vide 4 Bom. H. C. R. (A. C. J.) p. 31, 10 Bom. H. C. R. 491. But since Kalidas v.
   Kanhaya Lal L. R. 11 I. A. 218 it has been held that possession is not absolutely necessary
   to constitute a valid gift under Hindu Law. In Bhaskar v. Sarasvatibai 17 Bom. 486
   (at p. 491) it is said (approving Mayne) that Hindu Law properly so called appears to
   lay little stress on any such rule as applicable to gifts.
2. Compare Nār. p. 131 v. 23 for the same three classes and examples.

• P. 206 (text).

286 VYAVAHĀRAMAYŪKHA | [ B. X. 28
[ M p. 185 ll. 5-22 ]
kauṭumbika ( the general family servant ). '
Kātyāyana says
According to Bhṛgu one who is free by giving himself ( to another )
becomes a slave like a wife.¹ Slavery should be known as limited to three
varņas ( classes ) in no case can a brāhmaṇa become a slave *Slavery of
men of the kṣatriya vaiś ya and śūdra classes who give up their freedom
is to be in the descending order of the classes and not in the inverse
order ²
Nārada ( p 187 v 89 ) says :
Slavery is not ordained in the inverse order of the ( four classes )³
Kātyāyana says
Where the three twice-born classes are fallen from the order of ascetics
there ( the king ) should banish a brāhmaṇa ( apostate ) and a kṣatriya
( apostate ) should be reduced to slavery This is the view of Bhṛgu.
The mention of kṣatra ( in Kātyāyana ) is intended to include the
vaiśya and śūdra also ⁴ Dakṣa and Nārada describe the method of banish-
ing a brāhmaṇa
He who having entered the order of asceticism does not abide by the
peculiar duties of that order should be instantly banished by the king
after having branded on his skin the mark of dog s foot
Kātyāyana says
A brāhmaṇa should not be made a slave even to a brāhmaṇa. But a
brāhmaṇa may if he so desires, do work for another brāhmaṇa who is
possessed of good character and Vedic learning and to whom he is inferior
( in these respects ) But even then a brāhmaṇa should not do impure
1 Just as a woman by rendering up her person to her husband as his wife becomes
his dependent, so when a free man offers himself as belonging to another, he becomes a slave.
2 The first half is the same as Yāj. II. 183 (latter half). A kṣatriya, vaiś ya or a śūdra
can be the slave of a brāhmaṇa, a vaiś ya or s'ūdra can be the slave of a kṣatriya and a
s'ūdra of the vaiś ya.
3. The latter half of this verse is except where a man violates the duties peculiar
to his class and status. Slavery is like the condition of a wife A brāhmaṇa could marry
a girl of his own or of any of the three other classes so a kṣatriya or vais ya could be the
slave of a brāhmaṇa but just as a kṣatriya or vais ya male could not have as his wife a
girl of a higher class, so a man of a higher class could not be the slave of one of a lower
class. Nārada says generally that a man who violates the duties of his caste may become
the slave of one of a lower caste, while Yāj. II. 183 restricts this general rule by saying
that one who is an apostate from sannyāsa ( even though a brāhmaṇa ) becomes the slave
of the king alone but Kātyāyana prescribes that a brāhmaṇa apostate from sannyāsa
should be banished and any one of the other classes should be made a slave of the king.
4 This note of Nīlakaṇṭha shows that he held that even s'ūdras could go into the
order of sannyāsa. But the trend of the dharmaśāstras and other ancient authorities is
that a s'ūdra could not be a sannyāsin. Vide 30 Bom. 168 at p. 174 where it was assumed
that sannyāsīs are confined to the three higher castes.
P 207 ( text )

S. X. 3 6 ] BREACH OF CONTRACT SERVICE 287
M/p. 125 l. 23-p. 126 l. 25 ]
work ('even for a learned brāhmaṇa).¹
Manu (VIII. 411) says :

• 'A brāhmaṇa should support without harshness a kṣatriya or a vaiśya
  distressed for his livelihood; he should make them do work (befitting
  them) if they were their own masters'
  'Svāmīkarma' means 'work of a higher kind suited to their caste'.
  Kātyāyana says.
  He who takes a brāhmaṇa woman and also he who sells her should
  be fined by the king who should make that transaction (of sale and pur-
  chase) null and void. He who enslaves a woman of a respectable family
  that took shelter with him at her pleasure (or through lust) or who trans-
  fers her to another shall be punished and his act shall be annulled. He
  who enjoys the nurse of his child or one who is not a nurse or the wife
  of his attendant as if she were a female slave would incur the lowest
  amercement.
  Viṣṇu (V 151) says 'one who employs a man of a higher caste as a
  slave shall be fined in the highest amercement.'² Kātyāyana says :
  He who wishes to sell a female slave faithful to him who cries (when
  about to be sold), being able and not in any difficulty, would incur the
  lowest amercement.
  Nārada (pp. 135-137 vv. 26-29, 37, 30) describes the varieties of slaves:
  One born at (his master's) house, one purchased (for money), one
  received (by gift and the like), one obtained by inheritance, one main-
  tained during a famine, one pledged by his master, onet released from
  a heavy debt, one made captive in a fight, one won through a wager,
  one who approaches saying 'I am thine', one fallen from asceticism, one
  enslaved for a stipulated period, one who becomes a slave for maintenance,
  one enslaved on account of connection with a female slave, one sold by him-
  self—these are the fifteen classes of slaves declared in the śāstras. Among
  these the group of the first four cannot be released from slavery except
  by the favour of their masters, their bondage is hereditary. That wretched
  man who, being free, sells himself is the vilest of these (fifteen varieties).
  He also cannot be released from bondage. He out of these (fifteen), who
  saves his master from danger to life, would be free from the state of

1. Nārada (p 131. vv. 5-7) divides work into pure and impure and says that pure
   work is done by labourers and impure by slaves and then sets out impure work as 'sweep-
   ing the gateway, the privy, the road and the place for rubbish, shampooing private parts &c'.
2. This may refer to a brāhmaṇa being made a slave or to the fact of a man of a
   lower class employing as a slave one of a higher class.

• P 208 (text), † P. 209 (text)

218 । VYAVAHĀRAMAYŪKHA [ S. X. 6-10 / M. p. 126 l. 25-p. 127 l. 12 ]
slavery and shall get a son's share (out of his master's wealth)¹ ।
Yājñavalkya (II 183) says:
He who falls from asceticism becomes the king's slave for life.²
Nārada (pp. 136-137 vv 31-34) says
One maintained in a famine is released from bondage if he gives a pair
of oxen. A slave who is pledged becomes free (from pledgee's slavery)
when his master redeems him by paying off the debt. A debtor is freed
from slavery by paying his debt with interest. One who approaches say-
ing 'I am thine', one made a prisoner in war and one won in a wager-
these are released on giving a substitute who will do some work.³ A slave
for a stipulated period gets release on the expiry of the time fixed. *The
slave for maintenance is released at once from the moment the master ceases
to give him food. One enslaved on account of (connection with) a female
slave is released on parting from her.
Pratiśīrṣaḥ means a substitute. 'Vaḍavā' means a female slave.
Yājñavalkya (II 182) says
One who is forcibly made a slave and who is sold as a slave by robbers
is released (by the king if the master does not release him).⁴
Nārada (p. 138 v 40) says
If one who is not free offers himself as a slave (to another) saying
'I am thine' the slave would not secure his desire, but the former
master can recover him.
Asvatantraḥ means the slave of another. In this section the
masculine gender of the word 'dāsa' being not intended (to be strictly
taken), it should be understood that all these rules apply to a female slave
also. Kātyāyana states a reason for enfranchising a female slave
He, who has intercourse with his female slave who bears issue to him in
consequence, should make her together with her offspring free from slavery
having regard to the seed.
Bījam means child; the meaning is considering the fact of the
child being of good qualities.⁵ Nārada (p. 133 vv 42-43) says

1. One born at his master's house—means born from a female slave of the master.
   He is otherwise called garbhadasa. Bhaktadāsaḥ means one who says "I shall be your
   slave till I shall pay off the price of the food I have eaten" or one who says "I shall be
   your slave as long as you give me food." Who saves his master &c. — The Mit. on Yāj. II
   182 says when he saves his master attacked by robbers or a tiger. One enslaved......
   female slave—means one who being in love with a female slave marries her and enters
   the household as a slave.
2. That is, he could not be a free man by the favour of his master or by imperilling his
   life for saving his master.
3. The reading tulyakarmaṇā is much better. It means a substitute who is able
   to do as much work as these slaves.
4. Compare Nār. p. 137 v 38.
5. Vide notes to V M. p 390 for other explanations
   P. 210 (text)

egardedorregarded, the 'r' is slightly broken. It says regarded(orregardod`).

Line 15:
the owner.²

Line 16:
Thus ends (the section on) breach of contract of service.

Line 17:
Divider line: ───────

Line 18:
Now begins ( the section on ) non-payment of wages.
Wait, spacing: ( the section on )

Line 19:
Nārada ( p 139 v 1 ) says

Line 20:
A series of rules for payment and non-payment of the wages of labour-

Line 21:
ers is declared ( hereafter ); that is known to be the title of law called

Line 22:
' non-payment of wages '.

Line 23:
Yājñavalkya ( II. 194 ) says ·

Line 24:
He who without settling the wages to be paid causes work ( to be done )

Line 25:
should be made by the king to pay a tenth part ( of the profits ) of trade,
Wait, "the": the or tlie? In ( of the profits ), the 'h'

210 VYAVAHĀRAMAYŪKHA [S. XI. 4 5 / M. p. 128 l. 3-p. 129 l. 7]
compelled to do it after giving him the wages If he does not perform it
after having taken wages, he would incur liability to pay back twice the
wages ¹
Manu (VIII 215) says
A hired workman, who without being ill, does not perform through
insolence work as agreed upon should be fined eight kṛṣṇalas and no
wages should be paid to him ²
The same author (Manu VIII. 217 and 216) says
He, who whether well or ill does not perform the work as agreed,
shall have no wages paid to him though the work left unperformed be
only a small part. But a labourer who was ill may when he becomes
well perform his work as at first agreed upon and would get his proper
wages even after the lapse of a long time
Viṣṇu (V 153-154) says A hired labourer leaving off work before
the stipulated period expires shall forfeit the whole price of his labour and
should pay to the king a hundred paṇas. The same author (Viṣṇu V
157-159) says If the master dismiss the servant before the expiry
of the stipulated period he shall pay to the servant his whole wages and
a hundred paṇas to the king, except in cases where the servant is to
blame. ³ Vṛddha-Manu says
A servant should be made to pay the value of what he lost through care-
lessness and twice the value of what he lost through hatred (of the master)
but he should not be made to pay anything for what was stolen by
thieves nor for what was burnt nor for what was carried away by water

• Drohaḥ means hatred, Ūḍham means carried away
  Yājñavalkya (II. 197-198) says
  One who causes an obstacle (by refusal to work) just at the (auspicious)
  time of starting should be made to pay twice the wages, if (he causes
  obstacle) after starting he should be made to pay a seventh part, but
  the fourth part if he leaves off on the way
  Vṛddha Manu says
  If a merchant dismisses the servant on part of the journey after selling
  the merchandise, he (the servant) too must be paid but he shall receive
  half the wages
  Kātyāyana says
  If the goods be detained or seized on the way he (the servant) would
  obtain wages in proportion to the distance traversed That master who

1. Compare Yāj. II. 198.
2. A kṛṣṇala (otherwise called raktikā) is a little less than two grains. Five
   kṛṣṇalas made one māṣa and 16 māṣas made a suvarṇa, but two kṛṣṇalas made a māṣa of
   silver. Vide Manu VIII. 131 135 and Yāj I 362 363.
3. The fault of the servant must be theft and the like and not eating large quantities
   of food &c.
   P 218 (text)

S. XI 5-XII 1 ] NON-PAYMENT OF WAGES 241
M. p. 129 ll 8-32 ]
deserts on the way his servant who is helpless, tired or afflicted with dis-
ease will incur the first amercement, if he does not wait for three days in
the village (after the servant gets ill).
'Āsiddhyeta' means 'is detained or attached by the king's order'. Bṛhas-
pati (p 346 vv. 17-18) says
When a servant being enjoined by the master (to do something) does
an improper act (such as theft) for the master's benefit the master shall
be held responsible for it. That master who does not pay the wages of
labour even after the work is finished shall be compelled by the king to
pay it and also a proportionate fine¹
Nārada (p 141 v 7) says
(A merchant) who after having hired vehicles and beasts of burden
does not carry his merchandise by means of them shall be made to pay
a fourth part of the hire, and the whole hire if he leaves them half way.

• 'Yānam' means 'chariot and the like', 'vāhanam' means 'direct
  vehicles such as horses' Kātyāyana says
  He who having hired elephants, horses, bullocks, asses, camels and the
  like does not return them when his object is fulfilled shall be made to pay
  (the hire) till he returns them.
  Nārada (p 143 vv. 20-21) says
  If a man builds a house on the land of another and lives in it paying
  rent (for the land), he may take with him when he leaves it the thatch,
  the timber, the bricks and the like (building materials). But if he
  has resided on the ground of another without paying rent and without any
  definite agreement, he shall, when he leaves the house, make over to the
  owner of the ground, the thatch and the timber and the bricks laid (as
  walls)
  'Stomaḥ' means 'hire'
  Here ends (the section on) non-payment of wages.
  Now begins (the section on) transgression of conventions.
  Nārada (p 153 v 1) says :
  The established conventions (or rules) among heretics, naigamas
  and the like are styled samaya (compact, usage) That is known to
  be a title of law called 'non-violation of conventions' ²

1. It is better to read 'vinayam' for 'vetanam'.
   2 'Samayānapākarma' — Anapākarma is used in Manu VIII 4 with reference to
   'gifts' and 'anapakriyā' which is similar to 'anapākarma' in derivation is used with
   reference to gifts and wages in Manu VIII 214 Nārada has 'vetanasyānapākarma' and
   'samayasyānapākarma' It is difficult to give an exact rendering of anapākarma'.

• P. 214 (text)
  V. M. 31

242 VYAVAHĀRAMAYŪKHA [ S. XII. 1-3.
[ M p. 129 l. 33-p.130 l. 27

• Pākhaṇḍinaḥ means persons engaged in trade who are opposed to
  the path laid down by the Vedas naigamāḥ are those (traders) who
  are not opposed to the Veda, by the word ādi persons learned in the
  three Vedas are included. Bṛhaspati (pp 346 347 vv 2-3) declares the
  duty of the king in these matters.
  (The king) should bring and establish there (in his kingdom) brāhma-
  ņas proficient in the Vedas and lores, learned brāhmaṇas and those who
  keep sacrificial fires and should assign to them means of livelihood He
  should donate to them houses and lands from which no taxes are levied
  having declared in a grant of his that they would be free from liability to
  pay in future (the king s dues on land cultivated by them) ¹
  'Anāchedyakarāḥ means on which taxes are not levied Muktabhāvyāḥ
  means 'the future (share of the king in the) produce from the soil of which
  is given up Yājñavalkya (II 186) thus speaks about the peculiar rules
  of learned brāhmaṇas and the like
  Whatever rules are established by the king or by local conventions
  should be assiduously observed (by the learned brāhmaṇas and others)
  so far as they are not in conflict with their duties (as laid down in their
  sacred books) ²
  Nārada (p. 158 v 2) says
  Among heretics, among naigamas guilds, corporations groups and
  assemblages, the king must maintain the conventions (settled) among
  them in fortified places as well as in the open country also
  Śreṇis are communities of persons of various castes carrying on
  one kind of trade or business, pūgāḥ are communities of the same (i e.
  of persons of different castes) carrying on different kinds of trades,
  vrātas are assemblages of kinsmen, relatives and cognates they are also
  Saṁvid means a settled convention or usage and vyatikrama means transgression
  So saṁvidvyatikrama is another name of samayasyānapākarma Manu (VIII 5) and
  Yāj. employ the title saṁvid-vyatikrama while Br employs the word samayātīkrama
  Heretics are Bauddhas and Jainas who deny the authority of the Vedas. Naigama
  ordinarily means a trader Kātyāyana as quoted in V R. (p. 668) defines 'naigama
  as a group of citizens The Mit. on Yāj. (II. 192) explains naigama as Pāśupatas
  and others who regard the Vedas as authoritative (here the word is derived from nigama
  meaning Veda).
  1 Āp. Dh. S II 10. 26. 10, Manu VII. 133 exempt a learned brāhmaṇa from taxation
  and Manu VII. 135 calls upon a king to assign means of livelihood to śrotriyas.
  2 Aparārka and Sm. C. give examples of conventional rules Vide notes to V M
  p. 890. Some examples are old prapās and temples should be repaired, poor people should
  be supported when there is trouble from thieves, one man from each house should come for-
  ward for defence &c In the Pehava inscription from the temple of Garibnath (Epi. Ind.
  Vol I. p 184) we find that pious horse-dealers at Pehova agreed to impose upon themselves
  and their customers certain tithes, the proceeds of which were to be distributed among
  certain temples and priests. As examples of rules by the king are mentioned horses should
  not be sent to the enemy's country food should be given to all travellers
  P 315 (text)

S, XII, 8-XIII. 1. 8
M. p.130 l.22-p.131 l. 9 ] TRANSGRESSIONS OF CONVENTIONS 243
termed ' kulas ' ; ' pākhaṇḍins ' and ' naigamas ' have* been already
explained.¹ ' Gaṇas ' are the assemblages of these beginning with heretics
and ending with ' vrātas '. Yājñavalkya ( II 187 ) prescribes a punishment
for breaches of the conventions ( settled ) among these
Him who embezzles the property of a gaṇa or who violates their
established usages, the king should banish from the country after confis-
cating all his property ²
Here ends ( the section on ) the violation of conventions.
――――――
Now begins ( the section on ) rescission of purchase.
Nārada ( p. 149 v 1 ) says :
When a purchaser, after having purchased an article for a ( certain )
price, does not approve of it ( 1. e repents of the purchase ), it is termed
rescission of purchase, which is a title of law.
The same author ( Nārada p. 150 vv. 5-6 ) fixes the time for examin-
ing an article ( 1 e for buying an article on approval )
One should examine milch cattle within three days ( from purchase ),
beasts of burden for five days and the examination of pearls, diamonds
and corals may extend up to seven days. ( The examination ) of male
bipeds ( 1. e. male slaves ) may extend to half a month and twice that
( 1. e. for a month ) in the case of a female ( slave ), of all kinds of seeds
for ten days and for one day in the case of iron and clothes.³
Kātyāyana says .
The rescission ( lit. repentance ) in the case of land extends to ten
days for the purchaser or for the seller.
Bṛhaspati ( p. 350 v. 6 ) says
If some defect in any way is found ( by examination ) in the article
before these ( periods elapse ), the article should be returned to the seller
and the buyer should obtain the price thereof.
¶ Kātyāyana says :
If an article were purchased without being examined and was after-
――――――
1 Vide p 5 n 1 above for śreṇi, pūga and kula. Kātyāyana ( vv. 678-680 ) defines
the terms mentioned in this verse of Nārada ' Pūga ' is variously explained Mayūkha
gives one explanation Kāt explains it as ' companies of traders ' Vīr explains it as ' horse
riders and elephant riders '. Kāt, explains ' vrāta ' as meaning ' troops of soldiers armed
with various weapons ' and ' gaṇa ' as an assembly of brāhmaṇas ' Vide notes to V. M. p.
386 for examples of conventions prevalent among heretics &c
2 This punishment was to be awarded for serious offences, but for light ones Manu
( VIII. 220 ) prescribed a fine of four suvarṇas or six niskas &c.
3. Compare Yāj. II 177 These rules can apply only if the thing was purchased without
examination.

• P. 216 ( text ). ¶ P. 217 ( text ).